10 Fair Empl.prac.cas. 654, 9 Empl. Prac.dec. P 10,100anton E. Sperling, Appellant, v. United States of America et al., Appellees, 515 F.2d 465 (3d Cir. 1975)

This appeal, involving a claim of job discrimination by the federal government, brings before us for the first time important questions concerning the proper construction and application of the civil remedy afforded to federal employees in the district courts by § 717(c) of the Equal Employment Opportunity Act of 1972, Pub. L. No.92-261, 86 Stat. 111, 42 U.S.C. § 2000e-16(c), amending Title VII of the Civil Rights Act of 1964, Pub. L. No.88-352, 78 Stat. 255, 42 U.S.C. § 2000e et seq.

The Act mandates that all personnel actions affecting employment in the federal government are to be free from discrimination based on race, color, religion, sex, or national origin,¹  and provides the Civil Service Commission with broad remedial authority to insure that this explicit mandate will be carried out. The Act designates the Civil Service Commission as the administrative agency to review the claims of aggrieved federal employees or applicants for federal employment.²  Recognizing that private sector employees dissatisfied with the fact-finding or the conciliation procedures of the Equal Employment Opportunity Commission (EEOC) in Title VII actions are authorized to press their claims in the federal district courts, 42 U.S.C. § 2000e-5(f)-(k), the Act also provides a civil remedy in the district courts to federal employees dissatisfied with Civil Service Commission (CSC) review of their claims.³ 

Appellant Anton E. Sperling, a career employee in federal service filed suit in the district court pursuant to § 717(c). He appeals here from an order of the district court which granted the government's motion for summary judgment. Sperling had been employed as a civilian writer by the United States Army Electronics Command at Fort Monmouth, New Jersey (ECOM) since 1957. At ECOM, Sperling served as Executive Vice-President of Lodge 1904 of the American Federation of Government Employees (AFL-CIO), and as the union's grievance representative in Equal Employment Opportunity proceedings at the Fort. In that capacity, Sperling, a white man, represented a black ECOM employee in a series of discrimination grievance proceedings from 1965 through 1967. Sperling claims that he was denied a promotion to a GS-13 position in November, 1968, in retaliation for his successful representation, as union grievance delegate, of the black ECOM employee. Sperling pressed his own claim through the administrative process by filing a series of five complaints between March, 1968 and October, 1969, culminating in an adverse decision by the Board of Appeals and Review of the United States Civil Service Commission on July 15, 1972. On August 15, 1972 he filed suit in district court.

Sperling's amended complaint joins as defendants the Secretary of the Army, civilian and military personnel employed by the Department of the Army, the Commissioners of the United States Civil Service Commission, and the United States. The principal relief sought is a retroactive promotion to a GS-13 employment level together with back pay, and all other attendant rights and benefits for that level from December, 1968. Sperling also seeks an award of counsel fees.

Jurisdiction before the district court was alleged pursuant to the Federal question statute, 28 U.S.C. § 1331; the Civil Rights Act, 28 U.S.C. § 1343; the Tucker Act, 28 U.S.C. § 1346(a) (2); the Mandamus Statute, 28 U.S.C. § 1361; the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202; the Administrative Procedure Act, 5 U.S.C. § 702; the Back Pay Act, 5 U.S.C. § 5596; and the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16.

On August 20, 1973, the government moved to dismiss Sperling's complaint for failure to state a claim upon which relief could be granted, and, alternatively, moved for summary judgment. Sperling opposed the government's motions, and on October 16, 1973, filed a cross-motion for summary judgment. Sperling's position, both before the district court and on appeal, is that the administrative record leaves no fact issue as to a showing of the government's discrimination against him, and hence entitlement to relief. If, however, this court concludes that there is a fact issue as to discrimination, Sperling's position is that he is entitled to a de novo hearing in the district court on that issue. In the alternative, he is agreeable to having the determination made on the administrative agency record without an additional evidentiary hearing. The government's position before the district court, and on appeal, is (1) that the decision of the Board of Appeals of the Civil Service Commission is final; or (2) that if there is any judicial review it is limited to a determination that administrative due process had been afforded; or (3) that if any factual review is permitted it is limited to determining whether substantial evidence in the administrative record as a whole supports the Commission's findings.

The district court concluded that it had jurisdiction under the Tucker Act, but that the scope of judicial review available under that jurisdictional grant was limited to determining whether substantial evidence supported the Commission's findings.⁴  Alternatively, it held that if the suit was cognizable under § 717(c) of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(c), which the government disputed, its scope of review was limited to determining whether administrative due process was afforded by the agency.⁵ THE 1972 ACT

The Equal Employment Opportunity Act of 1972, Pub. L. No.92-261, extensively revised the employment discrimination provisions of Title VII of the Civil Rights Act of 1964.⁶  The 1972 Act added a new § 717 to Title VII making it clear that the federal government is obligated to insure that all personnel actions be free from discrimination based on race, color, religion, sex or national origin, § 717(a); vesting in the United States Civil Service Commission the authority to enforce these prohibitions by appropriate remedies and through its rule-making power, § 717(b); and affording to persons aggrieved, a civil remedy in the district courts, § 717(c).⁷  The interrelationship of § 717 with existing remedies for public and private employment discrimination, the cross-reference in § 717(d) to other provisions in Title VII,⁸  and the legislative compromises in Congress which resulted in the present language, coincide to produce an unusually difficult complex of problems in statutory interpretation.

An appropriate starting point is the framework of Title VII of the Civil Rights Act of 1964. As enacted, Title VII did not extend to employment in the federal government,⁹  but rather afforded a civil remedy in the district courts to victims of discrimination in the private sector once conciliation of their claims had been sought with the Equal Employment Opportunity Commission (EEOC).¹⁰  However, the EEOC was given no authority to seek judicial enforcement of these conciliation agreements. Absent some means of enforcement, the EEOC, in the eyes of many members of Congress, failed even to come close to achieving the Act's goal of eliminating employment discrimination in the private sector. Those Congressmen advocating a strengthened EEOC pressed for a cease and desist enforcement authority to be vested in the Commission. However, out of compromise, the 1972 Act amending Title VII authorized only judicial enforcement of EEOC orders,¹¹  while preserving the existing civil remedy for an aggrieved private sector employee in the district court.¹² 

Congress, in considering the amendment of Title VII, was also concerned with discrimination in public employment. Although Title VII of the 1964 Act had not been extended to federal employees, a number of other statutory provisions,¹³  Executive Orders,¹⁴  and Civil Service Commission regulations,¹⁵  all of which were in force by 1972, had already prohibited discrimination in such employment on account of race, color, religion, sex or national origin. There was, moreover, a longstanding back pay remedy available to federal workers.¹⁶  Despite these provisions, the House Committee charged with the responsibility of preparing a revision of Title VII concluded that progress in eliminating discrimination in federal employment had been "far from satisfactory."¹⁷  It attributed such lack of progress to structural defects in the procedures which the government regulations established for processing complaints,¹⁸  and to a lack of confidence on the part of federal employees in the performance of the Civil Service Commission.¹⁹  The principal defect in the prior system was that the very same federal agency charged with a discriminatory act conducted its own conciliation, investigation and until recently, its own adjudication of the claim.²⁰  Appeals from the final decision of an agency to the Civil Service Commission's Board of Appeals and Review, the House Report concluded, rarely resulted in a reversal of an agency decision.²¹  The House Committee on Education and Labor proposed, in H.R. 1746, to eliminate these deficiencies by vesting enforcement of the prohibition against discrimination in federal employment in the EEOC rather than in the Civil Service Commission, and by affording federal employees the same civil remedies which were afforded to employees in the private sector.²² 

While the House was considering H.R. 1746, the Senate Committee on Labor and Public Welfare was considering S. 2515, a bill addressed to the same issues. The Senate Report accompanying that bill, while recognizing that progress had been less than satisfactory, was more sanguine about what might be expected from the Civil Service Commission, and proposed to continue the antidiscrimination responsibility vested in the Commission by Executive Order 11478.²³  Despite their differences, however, the Senate Committee on Labor and Public Welfare, and the House Committee on Education and Labor were of like mind about the need for making a civil remedy in the courts available to federal employees who were dissatisfied with administrative review of their claims.²⁴  The provisions of § 717 with respect to the civil remedy as adopted in the final House and Senate versions are set forth in the margin.²⁵ 

In contrast to the conciliation provisions of the 1964 private civil remedy in Title VII, the House version would have permitted suits in the district court within thirty days of notice of an agency's disposition of claim. Because the House bill would thus have completely by-passed the appeal remedy before the Civil Service Commission's Board of Appeals and Review,²⁶  the civil remedy in the district court, of necessity, was the same trial de novo as in a private employment discrimination case. However, because the Senate Committee proposed to preserve the antidiscrimination enforcement authority of the Civil Service Commission, the Senate's version of § 717(c) made reference to the appeal remedy available before the Commission.²⁷  The Senate Committee report explains what was intended to be accomplished:

"The bill (section 717(c)) enables the aggrieved Federal employee (or applicant for employment) to file an action in the appropriate U.S. district court after either a final order by his agency or a final order of the Civil Service Commission or an appeal from an agency decision or order in any personnel action in which the issue of discrimination on the basis of race, color, religion, sex or national origin has been raised by the aggrieved person. It is intended that the employee have the option to go to the appropriate district court or the District Court for the District of Columbia after either the final decision within his agency on his appeal from the personnel action complained of or after an appropriate appeal to the Civil Service Commission or after the elapse of 180 days from the filing of the initial complaint or appeal with the Civil Service Commission." (emphasis supplied)²⁸ 

Thus in order to meet the substantial objections to the Civil Service Commission remedy, the Senate proposed to give public sector litigants the option of bypassing the Commission and seeking a judicial remedy at the outset. At the same time, those federal employees who had confidence in the Commission could appeal to it, but they would not thereby lose their right to an action in the district court if the Commission's decision was unsatisfactory.

The Conference Committee adopted the Senate's approach,²⁹  and § 717(c) as enacted, is identical in language to S. 2515 to which the Senate Report, quoted above, refers. The Senate Report would appear, then, to be the authoritative expression of Congressional intent. As will be developed hereafter, the option as to remedies which § 717(c) plainly affords, significantly bears upon the scope of review issues considered by the district court.

RETROACTIVITY OF § 717

Because the acts of discrimination complained of by Sperling took place before March 24, 1972, the effective date of the 1972 amendments, the government disputes the applicability of § 717 to this case. Sperling contends that because the statute is procedural and remedial in nature, it should be given retroactive application. Thus, since the administrative proceeding in his case was still pending on the effective date of the amendments, and was not concluded until July 15, 1972, Sperling urges that he is entitled to the civil remedy that § 717(c) affords. The question of the retroactivity of § 717 has already generated extensive litigation. The Second,³⁰  Fourth³¹  and District of Columbia³²  Circuits have given the Act retroactive application. The Sixth Circuit, reasoning that waivers of sovereign immunity should be strictly construed, has held that it should have prospective application only.³³  However, long before the enactment of § 717, the Third Circuit had concluded that other jurisdictional grants waived the federal government's sovereign immunity as a bar to the review of federal employment decisions.³⁴  A back pay award was available against the federal government before the enactment of § 717. See Back Pay Act of 1966, 5 U.S.C. § 5596. That statute as well as several of its predecessors which were to like effect have been held to apply retroactively.³⁵ 

We do not find the Sixth Circuit's sovereign immunity rationale for prospective application of § 717 persuasive in light of the longstanding waiver of immunity in the federal employment context. Whatever little may be said in support of a rule of strict construction of waivers of sovereign immunity in new fields, nothing can be said in favor of strict construction of a waiver in a field where it has long existed. No other reason has been suggested for a prospective application of § 717, and we find Judge Butzner's analysis in the Fourth Circuit's decision persuasive. He points to the legislative history of the statute, which indicates that Congress did not need to create new substantive rights for federal employees when it enacted § 717. Rather, Judge Butzner reasons that this provision was designed only to make judicial enforcement of longstanding federal substantive policies against employment discrimination more certain and more effective than in the past. Section 717, he concludes, is a classic example of a procedural or remedial statute applicable to cases pending at the time of enactment.³⁶  We agree with Judge Butzner and with those circuits which have held that § 717 applies to actions where an administrative claim was pending at the time of its enactment. Literally the statute applies to the case sub judice, since Sperling's suit was filed within thirty days of his receipt of notice of the Commission's action. Being procedural and remedial in nature, the Act governs the claims disposed of by that administrative decision.³⁷ 

SCOPE OF JUDICIAL REVIEW

The district court, while expressing doubt as to the applicability of § 717, concluded in the alternative that judicial review under the Act was limited to determining whether or not administrative due process had been afforded.³⁸  Neither the text of the statute nor any clues which may be divined from its legislative history support such a conclusion. The proper role of the district court in a § 717 case has, like the retroactivity issue, produced abundant litigation.³⁹  None of the cases recommend themselves to us as a completely satisfactory explanation of the district court's role in § 717 cases. Many proceed on the assumption that no real change in the role of the judiciary was intended. But that approach simply belies the plain language of the statute. Section 717(d) provides:

"The provisions of section 706(f) through (k), as applicable, shall govern civil actions brought hereunder."Section 706(f) through (k), 42 U.S.C. § 2000e-5(f)-(k), set forth the remedies available in the district court to private litigants in nonfederal employment. The Supreme Court has held that actions by private litigants under § 706 are considered de novo in the district court even if they follow EEOC proceedings.⁴⁰  Indeed the language of § 706 hardly admits of any other interpretation. Thus § 706(f) provides:

"(4) It shall be the duty of the chief judge of the district . . . to designate a judge in such district to hear and determine the case.

. . . sh

(5) It shall be the duty of the judge designated . . . to assign the case for hearing at the earliest practicable date . . .." (emphasis supplied)

and § 706(g) provides:

"If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice . . . (it) may enjoin the respondent . . .." (emphasis supplied)

Certainly nothing in § 706 suggests any role for the district court other than that of making an independent factual determination of the alleged fact of employment discrimination. There is no restrictive language such as is found in 28 U.S.C. § 2347(a) dealing with the review of final administrative agency orders, or in 5 U.S.C. § 702 et seq. dealing with district court review of agency adjudications. If the district court's role in § 717(c) federal employment discrimination cases is other than de novo, the limitation must be found elsewhere than in the remedy provisions of § 706.

Section 717 itself is the only other provision to which we have been referred that purportedly limits the district court's role. Although a number of district courts, and at least one circuit court,⁴¹  claim to have found a limitation of the district court's § 706 jurisdiction in § 717 (or have merely assumed it) we have great difficulty with this approach. Our hesitancy in accepting that analysis is attributable to the fact that in some § 717(c) cases the trial in the district court must be de novo. Section 717(c) provides that if a discrimination charge is filed with the employing agency by a federal employee, and the agency has not made a final disposition of the complaint within 180 days, the employee may then file suit in the district court. Obviously in such a suit, one would have to make a record in the district court upon which the court could then adduce the facts concerning the claim. From this class of § 717(c) cases we move to the situation where the employing agency has already processed and rejected a discrimination claim. Here, the plain language of § 717(c) itself, as well as the Senate Report's discussion of that provision,⁴²  make clear that the employee has the option of filing suit in the district court or appealing to the Civil Service Commission.⁴³  If suit has been filed the record made by the employing agency would, at a minimum, be evidentiary in the district court. In some cases summary judgment, pursuant to Rule 56 Fed. R. Civ. P., would undoubtedly be appropriate.

If the aggrieved federal employee selects the second option, appeals to the Civil Service Commission, and then seeks a private civil remedy, the only statutory reference to the district court's role is the cross-reference quoted above in § 717(d) to the provisions in § 706(f) through (k) "as applicable." Those courts which have concluded that a trial de novo is not available in a case where an appeal has been taken to the Commission have found room for that construction in the use of the words "as applicable."⁴⁴  It is difficult to comprehend how those words can support that construction. Such a reading would seem to imply that there are some cases where all of § 706, including even the jurisdictional grant in § 706(f) (3), might not be applicable.⁴⁵  Yet the same courts which have said that trial de novo is not available where an agency record has been made and appeal taken to the Commission, have assumed jurisdiction under § 706(f) (3). There is no language in § 706(f) which can be relied upon to exclude a trial de novo in any case. If the "as applicable" language were intended to exclude a trial de novo in all cases where an agency record was made, it would have to be so because the § 706 civil action remedy was somehow inapplicable, and therefore judicial review dependent upon some other remedy and statutory grant of jurisdiction.

More significantly, the inclusion of the words "as applicable" in § 717(d) could not have had any reference to the existence of a Civil Service Commission appeal procedure, since the "as applicable" language was included in the Senate bill S. 2515 long before the decision was made in the Senate Committee to amend the original version of the bill and provide for a CSC role in discrimination.⁴⁶  Neither under Title VII as enacted in 1964, nor under any version of the 1972 proposed amendments was it ever contemplated that action by the EEOC would deprive a private sector litigant of a trial de novo. If the words "as applicable" were not so intended when the bill referred to the EEOC, there is no reason to conclude that they took on a new meaning when the CSC was substituted for the EEOC with respect to federal employees.⁴⁷ 

With the exception of the first class of § 717(c) cases discussed above, in which a federal employing agency failed to act on a complaint for 180 days and thereby necessitated judicial fact-finding in a de novo proceeding in the district court, a construction limiting the district court's role to review of the administrative record would leave the law concerning the judicial review of federal agency employment decisions exactly where it was before a § 717 was enacted, at least in circuits such as ours, which did not recognize a sovereign immunity bar to judicial review.⁴⁸  In the other actions referable to the district court pursuant to § 717(c) there would be at least a record of fact-finding made by the employing agency, and in the situation where an appeal was taken to the CSC, the record made by the Board of Appeal and Review as well. It takes we think, a strained reading of § 717(c) to suggest that in three of the four situations in which a suit is explicitly permitted, Congress intended no advance beyond the existing law.

The leading case limiting aggrieved public employees to district court review based on the administrative record in a § 717(c) suit, rather than granting a trial de novo is Judge Gesell's decision in Hackley v. Johnson.⁴⁹  This opinion, oft-quoted as a result of the concentration of § 717(c) litigation in the District of Columbia Circuit, concludes that it was not the congressional intent to provide a de novo trial in all such proceedings.⁵⁰  In so holding, Hackley misreads the Act's legislative history.

The House was the first branch of Congress to move on its version of the Act. On June 21, 1971, H.R. 1746, a bill entitled the "Equal Employment Opportunities Enforcement Act of 1971" was reported out of the House Committee on Education and Labor without amendment and with a recommendation for its passage.⁵¹  As we have already noted, the House Report was highly critical of the Civil Service Commission's performance in eliminating discrimination in federal employment, and sought to correct this deficiency by transferring its enforcement functions to the EEOC.⁵²  And as already noted, the bill extended Title VII for the first time to federal employees by providing for a private civil remedy in the district courts.⁵³  However, the principal feature of H.R. 1746 was its provision for a judicially enforceable cease and desist authority to be vested in the EEOC.⁵⁴  It was this latter provision which sparked the most controversy when the bill was brought to the House floor for debate on September 15, 1971.

Opponents of the committee bill argued that the EEOC's cease and desist authority denied due process safeguards to private employers. They urged instead House passage of H.R. 9247 as an amendment in the nature of a substitute to H.R. 1746.⁵⁵  The "Erlenborn substitute," as it was called, proposed transferring enforcement powers to the courts rather than vesting the EEOC with a cease and desist power.⁵⁶  Following a second day of debate on September 16, 1971, the House voted 202-197 to consider H.R. 1746 as amended by the Erlenborn substitute,⁵⁷  and finally passed the bill in that amended form by a vote of 285 to 108.⁵⁸ 

Two days earlier, the Senate version of the bill, S. 2515, was introduced on the floor of the Senate in behalf of its cosponsors, Senators Williams of New Jersey and Kennedy of Massachusetts, and then referred to the Senate's Committee on Labor and Public Welfare for study.⁵⁹  Like the original version of the House bill, S. 2515 sought to provide the EEOC with a method of enforcing the rights of private sector employees who had been subjected to unlawful employment practices. And like the House's Committee bill, the key feature of the Senate version was a cease and desist authority vested in the EEOC.⁶⁰  The bill, as referrd to committee, extended Title VII coverage to federal employees with enforcement authority in the EEOC, and provided for a private civil action in the district courts for aggrieved employees.⁶¹ 

On October 28, 1971 the Senate Committee on Labor and Public Welfare reported out S. 2515 favorably, and recommended its passage subject to an amendment which extensively altered the § 717 proposal.⁶²  At the time the bill had been originally introduced to the Senate, Senator Kennedy as one of its cosponsors, had expressed concern over the bill's transfer of all equal employment opportunity functions from the Civil Service Commission to the EEOC. He opposed the transfer on two grounds: that the EEOC was already overworked in processing private sector claims, and that it was unwise to place the nation's entire equal opportunity effort in a single agency's hands.⁶³  As a result, an amended version of § 717 was added in committee at the behest of the bipartisan efforts of Senator Kennedy and Senators Cranston of California and Dominick of Colorado.⁶⁴  Both the Report, as it relates to a continuing Civil Service Commission role, and the Senate committee version of § 717(c), have already been set out in the margin.⁶⁵  Because the Senate was preoccupied with other pressing legislative matters, however, debate on the floor was delayed until the new year.

On January 18, 1972, the Senate Committee's version of S. 2515 was brought to the floor. It will be recalled that the House had already voted against a cease and desist authority in the EEOC in approving their version of the bill.⁶⁶  The Senate after four weeks of lengthy debate, followed suit and adopted the so-called "Dominick amendment" which also substituted EEOC enforcement through the courts.⁶⁷  However, opponents of the bill, led by Senator Allen of Alabama, continued to filibuster against its passage, even after the Senate's approval of the Dominick amendment.⁶⁸  On February 22, 1972, following two unsuccessful attempts at cloture, two-thirds of the Senate voted to limit further debate.⁶⁹  Before finally voting on S. 2515, the bill's sponsors attempted to provide their colleagues with an analysis of its salient features. It is at this point, that the legislative history presents some difficulties.

Senator Williams, one of the bill's original sponsors, and its manager on the floor provided a summary of § 717(c):

"Finally, written expressly into the law is a provision enabling an aggrieved Federal employee to file an action in U. S. District Court for a review of the administrative proceeding record after a final order by his agency or by the Civil Service Commission, if he is dissatisfied with that decision. Previously, there have been unrealistically high barriers which prevented or discouraged a Federal employee from taking a case to court. This will no longer be the case. There is no reason why a Federal employee should not have the same private right of action enjoyed by individuals in the private sector, and I believe that the committee has acted wisely in this regard."⁷⁰ 

In support of his statement, Senator Williams had a more lengthy analysis printed in the Record. This analysis was taken almost verbatim from the Senate Committee Report. There were however, some alterations of language which are significant for our purposes. We have set out the Williams analysis side-by-side with the Committee analysis in the margin to indicate these alterations, placing in brackets, and italicizing that wording in the Williams analysis which differs from the Committee's version.⁷¹  It would appear that the subtle change in nuance, quite clearly reflected in Senator Williams' alterations, was intended to emphasize the view that § 717(c) was to provide for only administrative review in the district court. Although deference is due to the Williams analysis in view of his role as cosponsor and floor manager of the bill, we believe the analysis in the Senate Report representing the consensus of the committee charged with studying the bill, more accurately reflects the congressional intent.

That the Senate Report should be regarded as explicative of congressional intent rather than the Williams view, is further demonstrated by Senator Cranston's insertion into the Record of the Committee Report's discussion which we have already quoted in the margin alongside the Williams analysis.⁷²  Senator Cranston, it will be recalled, had been instrumental in amending § 717 while S. 2515 was in committee, and it was the committee's amendment of § 717 which was the version debated on the floor of the Senate. Following the conclusion of debate, the Senate passed the bill by a vote of 73 to 16.⁷³ 

Our reading of the legislative history leads us to the conclusion that it was Congress' intent to provide an aggrieved federal employee with as full a panoply of procedural remedies in the district court as those afforded a private sector litigant. Judge Gesell's reliance in Hackley on Senator Williams' statement and analysis of the bill was misplaced, and his conclusion that a trial de novo is not mandated was erroneous.⁷⁴  We hold therefore that the statutory language of the Act, as well as its legislative history, indicates a right to a trial de novo in the district court when suit is brought by an aggrieved federal employee pursuant to § 717(c).

THE PLAINTIFF'S BURDEN

Having concluded that there is no statutory warrant for assigning the district court a different role in a § 717 case on the basis of either the absence or presence of an agency record, and also having concluded that the Act mandates a trial de novo in all cases, we next consider the function of the agency record in the district court proceeding. As we have discussed earlier, in most instances a discrimination complaint will have already have been the subject of agency review before the aggrieved employee brings suit under § 717(c). In the district court proceeding, as in any civil action, the employee has the burden of proving his allegations of agency discrimination. In this regard the agency record will have evidentiary value. It may well establish that there is no genuine fact issue as to the absence of discrimination. In such a case summary judgment is appropriate. If, however, there is a genuine fact issue, that must be resolved by the district court pursuant to the Federal Rules of Civil Procedure. However, the Federal Rules do not specifically instruct the district court as to the proper standard of review to be applied to the agency's fact-finding record, nor does the language of § 717(c) itself enlighten us in this regard.

Among those decisions which have considered the appropriate standard of judicial review under § 717(c), the two opinions which most thoughtfully address the problem in the context of an agency record which has rejected a discrimination claim, are those of Judge Gesell in Hackley v. Johnson,⁷⁵  and Judge Caleb Wright in Guilday v. Department of Justice.⁷⁶  Both opinions reject the position that § 717(c) represented no advance beyond the previously existing law. Both reject the contention that the judicial role is limited to "substantial evidence" review in those cases where an agency record exists.⁷⁷  They reject, a fortiori, the position of the district court in this case that judicial review in a § 717 case is narrower still, being an inquiry limited solely to a consideration of administrative due process.

In Hackley, Judge Gesell declined to accept the plaintiff's position that in every § 717(c) case a district court evidentiary hearing was required, and dismissed as well the government's position that the district court was limited to substantial evidence review.

"The district court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record." (emphasis supplied).⁷⁸ 

Judge Gesell's approach requires that the district court examine the administrative record and determine if on that record, by the clear weight of the evidence,⁷⁹  the government is entitled to a judgment. If not, he suggests, the district court may in its discretion either remand or take further testimony. The more attractive course to hard-pressed district court judges seems obvious.

But remand to whom? If a § 717(c) suit is commenced after an adverse employing agency decision, one would suppose that the remand would properly be to the employing agency. If the suit is commenced after a decision by the Civil Service Commission's Board of Appeals and Review,⁸⁰  a remand to it would require a second remand by the Board to the employing agency for the purpose of further fact finding. Entirely aside from the absence of any statutory authority for a district court to direct either a single or a double remand to an executive department agency for the purpose of taking testimony,⁸¹  there is the underlying issue of credibility. The motivational criteria that may color agency decisions on employment or promotion cannot, even in the computer age, be quantified, and motivation is what § 717 is all about. A remand for a decision on motivation, which shields the ultimate trier of fact from a face to face confrontation with those witnesses who were exposed to the events, does not seem consistent with the rather clear policy decision implicit in the enactment of § 717. That policy decision, it seems to us, was that the executive branch agencies would no longer be the judges of their own motivation.

Judge Wright's opinion in Guilday v. Department of Justice, also rejects both the plaintiff's position that trial de novo is always available, and the government's position that the court's role is limited to substantial evidence review.⁸²  While relying on Hackley, Judge Wright also found authority in Rule 56(c), Fed. R. Civ. P. for rejecting plaintiff's claim to an evidentiary hearing:

"As a matter of course, the Government and often the plaintiff moves for summary judgment based on the administrative record. The court must decide, after reviewing the record, whether there is a genuine issue as to any material fact and whether that movant is entitled to a judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure. Based on this review, the Court either remands for further administrative proceedings, allows the case to go to trial with the administrative record in evidence, or grants or denies relief on the administrative record." (footnote omitted)⁸³ 

Judge Wright then proceeded to consider by what standard a district court should review the administrative record, and held that it would require that the "absence of discrimination be established by the preponderance of evidence in the administrative record."⁸⁴ 

There is no doubt that in appropriate cases summary judgment may be correct. But we do not think that Rule 56(c) can support the kind of hybrid judicial review envisaged by Judge Wright. Our difficulty lies in applying his proposed standard of review. Consider, hypothetically, a discrimination complaint which turns on credibility. If the agency's hearing examiner makes credibility judgments against the complaining employee, will the district court then defer to those judgments or instead attempt to reach an independent judgment on the basis of a transcript without ever having the benefit of an opportunity to observe the demeanor of the complainant and other witnesses? If the Board of Appeals and Review of the Civil Service Commission, which also reviews on the agency record, has affirmed the hearing examiner's decision, what deference will be given to the Board's decision by the district court in applying the preponderance test? Finally, since in the administrative grievance proceedings the burden presumably is on the employee to establish his grievance,⁸⁵  what justification is there, when the matter reaches court, for reviewing the record to see if the government has disproved the grievance by a preponderance of the evidence?

We are well aware that a substantial motivation of those courts which have held that federal employee discrimination claims will be reviewed on the agency record by a substantial evidence standard has been their perception of the deluvian consequences of such lawsuits in the federal judicial system, and of the waste involved in affording both administrative and judicial remedies. Those concerns, while real, are matters properly within the sphere of the legislature. In any event, the federal courts have not been put out of business by Title VII lawsuits from the private sector. Those suits, too, in many cases duplicate grievance-arbitration remedies analogous to the grievance remedies established by federal regulation for government employees. Though the burden imposed on the federal courts by § 717 will be a heavy one, we will, one suspects, remain open for business.

We thus conclude that in the de novo proceedings in the district court, the agency record can be reviewed on a motion for summary judgment by the standard generally applicable under Rule 56, Fed. R. Civ. P. ; that is the existence of any genuine issue of fact as to employment discrimination. If such a motion is not granted, the agency record is admissible in evidence at trial when appropriate under the applicable Federal Rules of Civil Procedure and of Evidence. And, as in any other civil action, the aggrieved federal employee must prove his or her discrimination claim by a preponderance of the evidence.

SPERLING'S CASE

Although the district court applied an improper legal standard in deciding the government's motion for summary judgment, a remand by this court would not be necessary if by any standard Sperling could not prevail. Thus we must consider whether § 717 is applicable to Sperling's charge that the government discriminated against him as a consequence of his representation of blacks in grievance discrimination proceedings at Fort Monmouth. The government, without referring us to any authority, but instead relying on the language in § 717(a) that prohibits "discrimination based on race, color, religion, sex, or national origin" in federal employment, argues that the 1972 Act afforded no substantive protection from reprisal or retaliation to Sperling in his capacity as a representative of a black employee claiming discrimination. However, almost identical language appears in 5 U.S.C. § 7151 et seq., which seeks to insure equal employment opportunities to federal employees.⁸⁶  Acting pursuant to those provisions, the Civil Service Commission has adopted regulations which provide in pertinent part:

"Complainants, their representatives, and witnesses shall be free from restraint, interference, coercion, discrimination, or reprisal at any state in the presentation and processing of a complaint, including the counseling stage under section 713, or anytime thereafter." (emphasis supplied).⁸⁷ 

This is a construction of § 7151 et seq. by the very agency charged with its administration. The § 717(c) remedy supplements those additional remedies which were made available to federal employees pursuant to 5 U.S.C. § 7151 et seq., and it would be quite illogical to assume a congressional intention that § 717 be read more narrowly. We conclude, therefore, that Sperling's claim of discrimination falls within § 717's ambit.

The government also contends that on the administrative record in this case, which is the only evidence on which Sperling relied, the defendants are entitled under Rule 56 to a summary judgment that he was not discriminated against. We have reviewed the entire record, encompassing six volumes of appendix, and conclude that summary judgment would be inappropriate here because genuine issues of fact exist as to Sperling's allegations of employment discrimination.

On remand the district court must make an independent determination as to whether the charge of discrimination which was pending at the time of enactment of § 717 has been sustained by a preponderance of the evidence. In making that determination the court will have to consider to what extent evidence relating to prior acts of alleged discrimination are properly considered as evidentiary in support of the pending charge. For example, Sperling traces his ongoing employment difficulties to a highly critical report written by William Biven, an Assistant Deputy Equal Employment Opportunity Officer at Fort Monmouth, with respect to his conduct as the representative of a black complainant in a June, 1967 discrimination hearing. (3 Appendix at 915-40). The report urges that Sperling be disciplined for what Biven characterized as Sperling's "misconduct" as the complainant's representative at the hearing (3 Appendix at 929-36). Whether there is in fact any connection between the Biven report and subsequent decisions on Sperling's promotion is a matter which the district court must consider. Since we are remanding so that it can make an independent factual determination, it is not appropriate for us to express our views on the facts except to hold that summary judgment was improper here.

Finally, as to the request for attorneys fees, such an award may be made only if Sperling prevails below. 42 U.S.C. § 2000e-5(k).

The order of the district court granting summary judgment for the defendants will be reversed and the case remanded for further proceedings consistent with this opinion.